A Year in Review: A Recap of 2018 Changes to Employment Laws Affecting New York Employers

How do you measure a year in labor and employment law? Likely not in daylights or sunsets, midnights, or cups of coffee — but rather in legislation! Clearly, the most significant developments last year concerned the rise of the #MeToo movement and the opportunities and challenges it presents for employers. In the meantime, New York State, New York City and other jurisdictions were hard at work passing and implementing new laws affecting the workplace, including some undertaken in response to the revelations of the #MeToo movement. Here, we summarize key 2018 labor and employment law developments plus a few more recent developments, for NYS and NYC employers.

Topics Covered in This Alert

CHANGES TO NEW YORK STATE LAWS

Sexual Harassment and Discrimination

As part of the nationwide #MeToo movement, New York lawmakers enacted a number of laws to prevent sexual harassment in the workplace. NYS employers are now required to (a) adopt and provide to all employees a written sexual harassment prevention policy and written complaint form for reporting sexual harassment and (b) conduct annual anti-sexual harassment training for all employees. In light of these new laws, the NYS Department of Labor, in consultation with the NYS Division of Human Rights, released a variety of guidance materials, including a model policy, to aid employers in implementing these new requirements. 

While an employer is not required to adopt the State’s model guidance policies and forms, an employer’s anti-sexual harassment policy must meet the State’s minimum standards. Moreover, by Oct. 9, 2019 employers must conduct annual anti-sexual harassment training that meets the state’s minimum training requirements.

In addition, the NYS Human Rights Law was amended to protect “non-employees,” including independent contractors, vendors or consultants, from sexual harassment. The state also prohibits the use of nondisclosure agreements in the resolution of workplace claims of sexual harassment or sexual assault unless the person who complained prefers confidentiality. 

NYS’s new law purports to prohibit employers from including claims of sexual harassment in mandatory arbitration agreements. However, this provision has an express limitation — “[e]xcept where inconsistent with federal law” — that raises serious questions regarding whether it has any practical application, given the strong preference for arbitration demonstrated in the Federal Arbitration Act and consistently restated in numerous decisions of the United States Supreme Court and lower courts.

Employers are strongly encouraged to review our previous client alerts on this topic, linked above, for additional details on these laws and their requirements.

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Gender Identity and Expression Protections

On Jan. 25, 2019, Gov. Andrew Cuomo signed into law the Gender Expression Non-Discrimination Act (GENDA), which extends protections for transgender and nongender-conforming individuals by explicitly adding gender identity and expression as a protected class under the NYS Human Rights Law. Although the NYS Division of Human Rights had previously adopted regulations consistent with state case law interpreting the term “sex” to include transgender individuals for purposes of the Human Rights Law, the passage of GENDA, effective Feb. 24, 2019, explicitly codifies these protections into law.

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Paid Family Leave

NYS started 2018 with a new paid family leave benefits law – New York Paid Family Leave law (NY PFL). The law requires New York employers to provide employees with paid leave, the cost of which is covered through employer-funded insurance coverage via deductions from employee paychecks. The permitted purposes for taking NY PFL largely mirror the purposes of the federal Family Medical Leave Act (FMLA), except that employees may not use NY PFL to address their own serious health conditions. Under the NY PFL law, employees may take leave:

• To care for a family member due to the family member’s serious health condition.
• To bond with a newborn child during the first year of the child’s life or the first year of a child’s placement for adoption or foster care.
• In connection with the process of placing or adopting a child if an absence from work is necessary for the placement to proceed.
• In the event of a qualifying exigency arising from the service of a family member in the armed forces.

NY PFL also expands family member coverage; in addition to spouses, children and parents, who are covered by the FMLA, the NY PFL law extends coverage to domestic partners and grandparents.

2019 brings new changes with regard to NY PFL. Beginning on Jan. 1, 2019, eligible employees are now entitled to a total of ten weeks of NY PFL during any given 52-week period, a two-week increase from 2018’s benefits. During the 2019 calendar year, employees are entitled to receive 55% of their average weekly wage, with a cap of $746.41 in benefits per week. These amounts are scheduled to continue escalating until 2021

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Minimum Wage Increase

Statewide minimum wage increases took effect on Dec. 31, 2018. Annual increases will continue until the minimum rate for all employees in the state reaches $15.00 per hour. As of Dec. 31, 2018, the general minimum wage standards are as follows:

• $15.00/hr. — NYC employers with 11 or more employees
• $13.50/hr. — NYC employers with ten or fewer employees
• $12.00/hr. — Long Island and Westchester employees
• $11.10/hr. — All other NYS employees

Please note that these rates are the “general” minimum wage. Employers may refer to the NYS Department of Labor’s Wage Order Summary for additional wage rates for different industries.

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Increase in Salary Threshold for Overtime Exemptions

In addition to an increase in the state’s minimum wage, the salary threshold to meet the administrative and executive employee exemption from overtime also increased on Dec. 31, 2018.

Most of these rates are set to increase again on Dec. 31, 2019.

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CHANGES TO NEW YORK CITY LAWS

Sexual Harassment and Discrimination

NYC also enacted several anti-sexual harassment laws as part of its Stop Sexual Harassment in NYC Act (the city act). 

Effective May 9, 2018, the city act provides that all city employers, regardless of company size, will be subject to the NYC Human Rights Law’s (NYCHRL’s) prohibition on gender-based harassment. The city act also extends from one to three years the statute of limitations for filing gender-based harassment complaints with the NYC Commission on Human Rights (the Commission).

Effective Sept. 6, 2018, the city act requires all employers to conspicuously display an anti-sexual harassment poster (in both English and Spanish) and distribute an information factsheet on sexual harassment to all new employees at the time of hire.

Effective April 1, 2019 NYC employers with 15 or more employees must conduct annual anti-sexual harassment training. The training must satisfy several specified requirements and employers must keep a record of all training, including a signed employee acknowledgment, for at least three years. The City also released its own frequently asked questions, which indicate that the Commission is in the process of developing an online training that will meet the training requirement and is expected to be available on the Commission’s website on or before April 1, 2019.

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Gender Identity and Reproductive Health Protections

Effective May 10, 2018, NYC broadened the definitions of “sexual orientation” and “gender” under the NYCHRL. 

Under the expansive new definition, “sexual orientation” is now defined as “an individual’s actual or perceived romantic, physical or sexual attraction to other persons, or lack thereof, on the basis of gender.” The definition recognizes there is a “continuum of sexual orientation” protected under the law, including, but not limited to, asexuality and pansexuality in addition to the already covered heterosexuality, homosexuality, and bisexuality. 

The new, broader definition defines “gender” as “actual or perceived sex, gender identity, and gender expression including a person’s actual or perceived gender-related self‑image, appearance, behavior, expression, or other gender-related characteristic, regardless of the sex assigned to that person at birth.”

Effective May 20, 2019, NYC is adding an “individual’s sexual and reproductive health decisions” as a protected category to the NYCHRL. 

With the amendment, the NYCHRL will define “sexual and reproductive health decision” to mean a decision by an individual to receive services, which are arranged for or offered or provided to individuals relating to sexual and reproductive health, including the reproductive system and its functions. Such services include, but are not limited to, fertility-related medical procedures, sexually transmitted disease prevention, testing, and treatment, and family planning services and counseling, such as birth control drugs and supplies, emergency contraception, sterilization procedures, pregnancy testing, and abortion.

Employers are encouraged to update their anti-discrimination policies to reflect these new amendments to the NYCHRL.

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Lactation Accommodation

In late 2018, NYC adopted two new laws that place additional obligations on employers to accommodate employees who choose to express milk in the workplace. The laws, both of which go into effect on March 18, 2019, require employers to provide a suitable lactation room for employees and implement a written policy detailing employees’ rights to use the lactation room and the process for requesting use of the room.

The new laws dictate that the lactation room must be “a sanitary place, other than a restroom, where employees can express breast milk shielded from view and free from intrusion.” At a minimum, the lactation room must have nearby access to running water and include an electrical outlet, a chair, and a surface on which to place a breast pump and other personal items. Moreover, both the lactation room and a refrigerator “suitable for breast milk storage” must be in “reasonable proximity” to the employee’s workspace. Although the new laws allow an employer to designate a room that also is used for other purposes, its sole function must be as a lactation room while an employee is using it to express milk, and the employer must notify other employees that “the room is given preference for use as a lactation room.”

If providing a lactation room poses an “undue hardship” for an employer, the employer must engage in a “cooperative dialogue” with the employee to determine what, if any, accommodations might be available.

Under the new laws, employers are also now required to implement a written lactation room policy notifying employees that they have the right to a lactation room and describing the process by which employees may request use of the lactation room.

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Safe and Sick Time

In 2018, NYC created new protections for employees who have been victims of domestic violence and/or unwanted sexual contact. On May 5, 2018, NYC’s amended Earned Safe and Sick Time Act became effective, expanding the Earned Sick Time Act to require employers to provide employees with paid “safe time.” Safe time can be used for a variety of activities related to the status of an employee (or the family member of an employee) as a victim of domestic violence or unwanted sexual contact, stalking, or human trafficking, including:

• To obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program for relief from a family offense matter, sexual offense, stalking or human trafficking
• To participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members from future family offense matters, sexual offenses, stalking or human trafficking.
• To meet with a civil attorney or other social service provider to obtain information and advice on and prepare for or participate in any criminal or civil proceeding, including but not limited to matters related to family offenses, sexual offenses, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, or discrimination in employment, housing or consumer credit.
• To file a complaint or domestic incident report with law enforcement.
• To meet with staff in a district attorney’s office.
• To enroll children in a new school.
• To take other actions necessary to maintain, improve or restore the physical, psychological or economic health or safety of the employee or the employee’s family member, or to protect those who associate or work with the employee.

The law also requires that employers include in their safe and sick time policies a description of the confidentiality requirements of Section 20-921 of the NYC Administrative Code. Unless the employee authorizes disclosure or disclosure is required by law, the provision prohibits an employer from disclosing an employee’s or an employee’s family member’s medical condition, health information, status or perceived status as a victim of a family or sexual offense or of stalking or human trafficking, and it requires employers to keep confidential such information obtained in connection with utilizing safe and sick time.

Employers should ensure their employee handbooks and leave policies are updated to reflect the addition of safe time as protected leave.

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Temporary Schedule Changes

NYC’s Temporary Schedule Change Amendment to the Fair Workweek Law (the Schedule Change Amendment) went into effect on July 18, 2018. The Schedule Change Amendment requires most employers in NYC to allow a covered employee to make a temporary change to the employee’s work schedule for up to two business days each calendar year to accommodate a “personal event.” A temporary schedule change includes an adjustment in the hours, times or location where an employee is expected to work. A personal event occurs when an employee needs to (a) care for a qualified minor child or an individual with a disability, (b) attend a covered legal proceeding or hearing for public benefit, and (c) use leave for reasons permitted under NYC’s Paid Safe and Sick Leave Law. Additionally, the Schedule Change Amendment prohibits retaliation and employees cannot agree to waive the rights provided under the law.

The law requires employers to post in a conspicuous location a “You Have a Right to Temporary Changes to Your Work Schedule” notice, which is available here. Employers also must update their handbooks and leave policies to meet or exceed the requirements of the new law and educate managers and supervisors regarding their obligations under the law.

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Reasonable Accommodations and Cooperative Dialogue

On Oct. 15, 2018, an amendment to the Administrative Code went into effect requiring employers covered by the NYCHRL to engage in a good faith “cooperative dialogue” when evaluating employee requests for accommodations in the workplace and to document the results of that dialogue in writing.

The NYCHRL’s cooperative dialogue requirement is similar to but more stringent than the Americans with Disabilities Act’s (ADA’s) “interactive dialogue” requirement. Like the ADA, the statute directs employers to communicate orally or in writing with the employee regarding (a) the employee’s accommodation needs, (b) potential accommodations (including alternatives to a requested accommodation) and (c) any difficulties the proposed accommodations could pose for the employer. Unlike the ADA, however, under the NYCHRL, the employer must provide the employee with a final written determination at the conclusion of the cooperative dialogue identifying any accommodation it granted or denied. The statute expressly notes that a determination that no reasonable accommodation is available cannot be made until after the parties have engaged, or the employer has attempted to engage, in a cooperative dialogue.

To comply with this new law, employers should update their policies and practices and train their human resources and management staff regarding how to properly engage in a cooperative dialogue in connection with a request for an accommodation.

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CHANGES IN OTHER JURISDICTIONS

Federal activity

While the majority of labor and employment bills stalled in the 115th Congress, the Tax Cuts and Jobs Act is one notable 2018 development on the federal level that warrants review by New York employers.

Tax Cuts and Jobs Act

The Tax Cuts and Jobs Act, which was signed into law on Dec. 22, 2017, eliminated previously permitted tax deductions for certain expenses related to payments made as part of settlements requiring confidentiality with respect to claims of sexual harassment or sexual assault. The act also eliminated certain other business-related deductions, including employer-paid relocation, transportation and entertainment expenses.

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Local jurisdictions

While this alert does not reference every local employment-related law passed in 2018, certain major legislation in other New York counties is mentioned below. Employers are encouraged to check with counsel to ensure their practices and polices comply with all applicable local laws in jurisdictions where they operate.

Westchester’s Earned Sick Leave Law

Westchester County’s Board of Legislators adopted the Earned Sick Leave Law (ESLL), which goes into effect on April 10, 2019. The law is similar in many respects to NYC’s Earned Safe and Sick Time Law (although Westchester’s version does not provide for safe time). The ESLL requires employers in Westchester with five or more employees to provide at least one hour of paid sick time for every 30 hours worked, up to a maximum of 40 hours of paid sick time a year. Employers with fewer than five employees must provide the same amount of sick time — but unpaid — to their employees. Covered employees include both full- and part-time employees who work more than 80 hours in a calendar year. An employee’s ability to use earned sick time may be delayed until the employee has worked for the employer for 90 days. Notably, ESLL imposes notice and posting requirements on employers and imposes civil fines for willful violations of the notice and posting requirements.

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Salary History Bans

In 2018, states and cities continued to embrace the growing trend of salary history bans, with both Westchester and Suffolk counties joining the list of jurisdictions barring employers from inquiring about applicants’ prior salary histories. Employers are reminded that NYC and Albany both passed similar salary history ban legislation in 2017.

Under Westchester County’s law, which went into effect on July 9, 2018, employers are prohibited from requesting information about previous wages, and only in limited circumstances can an employer confirm prior pay and rely on such information in setting compensation.

Suffolk County also joined the list of salary history ban jurisdictions in late 2018 by enacting one of the broadest salary history bans in the nation. When it goes into effect on June 30, 2019, employers may not ask, whether on an application or otherwise, about a job applicant’s wage or salary history, including compensation and benefits. Employers also cannot rely on the salary history of an applicant for employment in determining the wage or salary amount for such applicant at any stage in the employment process, including at offer or contract. Notably, unlike similar laws in NYC and Westchester County, which recognize certain additional exceptions to the prohibition on salary history inquiries (for example, when the applicant makes an unprompted and willing disclosure of his or her salary history to the prospective employer), the Suffolk County law does not address this scenario or provide any other exceptions.

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In light of these developments, New York employers are encouraged to review their policies and practices to ensure they are complying with all federal, state and local laws. As 2019 promises to bring even more changes for employers, there’s no time like the present to ensure you are in compliance. 

For questions or concerns regarding compliance with any of the laws and regulations listed above, please contact a member of Kramer Levin’s Employment Department.

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